Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Wednesday, April 12, 2006

In Re S.C. (Cal. Ct. App. - April 7, 2006)

Ouch.Ouch ouch ouch ouch. Justice Scotland writes this opinion for one purpose, and one purpose only: To utterly, ruthlessly, and at length slam counsel for the appellant, Julie Lynn Wolff. That's what the entire opinion -- at 46 pages -- is about. The merits of the appeal are easily dismissed. The whole point of the opinion is to embarrass Ms. Wolff.

This is painful to read. Literally painful. Not that Ms. Wolff doesn't deserve a lot -- a lot -- of Justice Scotland's critiques. She does. Totally.

But the attack is so relentless that I couldn't help but feel a tiny, tiny bit of sorrow for Ms. Wolff. Who now has a published -- and deliberately high-profile -- attack on her, and who utterly lacks any ability to respond.

Plus, it's clear what transpired here. Ms. Wolff was trial counsel below, in addition to counsel on appeal. It was a highly emotional case, and involved both molestation allegations against the stepfather as well as an attempt by the State to take custody of the child away from her mother for failure to protect.

It is clear that Ms. Wolff became -- as sometimes happens -- emotionally involved herself. Which, in turn, led to the vast majority of the troubles with Ms. Wolff's brief on appeal.

Look, I'm not a nice guy. I insult people left and right. Daily, in fact. When even I feel a tinge of guilt at the breadth and depth of an attack, you know that it's really severe. Which it undoubtedly is here.

To reiterate: Not that Justice Scotland isn't right. There's a lot about Ms. Wolff's brief that's entirely wrong. Wrong, wrong, wrong. And inexcusable. So I totally see the point of Justice Scotland's missive.

It's just so . . . harsh. Just take a gander at the first several sentences of the opinion, which set the tone: "This is an appeal run amok. Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be. In 76,235 words, rambling and ranting over the opening brief’s 202 pages, appellant’s counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to common sense notions of effective appellate advocacy--for example, gratuitously and wrongly insulting her client’s daughter (the minor in this case) by, among other things, stating the girl’s developmental disabilities make her 'more akin to broccoli' and belittling her complaints of sexual molestation by characterizing them as various 'versions of her story, worthy of the Goosebumps series for children, with which to titillate her audience.'"

Now imagine 46 pages exactly like this, which consistently -- and without pause -- reiterate and support this same basic theme. As I said at the outset: Ouch.

Again, not that Ms. Wolff doesn't deserve it. Check out, for example, this discussion on page 35: "Spread out over 81 pages is a contemptuous attack by appellant’s counsel on the mental competence of appellant’s daughter. The attack is stunning in terms of its verbosity, needless repetition, use of offensive descriptions of the developmentally disabled minor, and misrepresentations of the record. For example, appellant’s counsel sets forth a lengthy narration that purportedly quotes the juvenile court’s reasons for finding the minor competent to testify. She attributes to the judge a statement that the minor, 'with an IQ of 44' and 'test results . . . in the moderately retarded range in all areas, is more akin to broccoli, than to a single celled amoeba.' However, our examination of the record reveals that the judge never made such a statement. Rather, those words are the gratuitous, offensive commentary of appellant’s counsel. Indeed, earlier in her brief, counsel flippantly 'submits nothing is below [the minor’s test score] percentile, except broccoli.' Another offensive statement, which appellant’s counsel wrongly attributed to DHHS’s expert witness, was counsel’s assertion in the juvenile court that 'Dr. Miller think[s] [the minor is] pretty much a tree trunk at a 44 IQ.' Again, this is shameful editorializing by appellant’s counsel."

Yikes.

Justice Scotland, in the last paragraph of the opinion, sends a copy to the State Bar. Ms. Wolff -- a graduate of McGeorge School of Law -- has already (and recently) been disciplined by the Bar, in a November 2005 public reproval.